The Nederland , 7 F. 926 ( 1881 )

Butler, D. J.

No debatable question of law is involved. The contract imposed on respondent an obligation to observe the highest degree of care for the passenger’s safety. For accidents which could not be avoided by such care, (resulting from latent defects in machinery, or other similar cause,) ho was not responsible. He was not an insurer. The law is well stated in Meyer v. Railroad Co. 14 P. F. Smith, 222.

Here the accident resulted from the “shoulder of the swivel drawing out of the block. ” So the witnesses testify, and so the libellant says in his “statement of facts.” This could only occur by reason of some defect in the shoulder; and the shoulder being imbedded in wood, and covered by the iron strap, (which w'as permanently affixed thereto,) this defect could not be discovered. The impossibility of such discovery is shown not only by the testimony of the witnesses, but also by inspection of the block. It cannot be urged that the block was liable to such an occurrence, (as the shoulder drawing out,) because of its peculiar construction, and, therefore, an improper one; for the evidence shows that the drawing out of the swivel, in similar blocks, had never occurred before, to the witnesses’ knowledge, and that the block is such as is in common use. It follows from what has been said that the respondent is not liable for the complainant’s injury.

While the question of contributory negligence, which was discussed by counsel, is rendered unimportant by the conclusion reached, I, nevertheless, deem it proper to say, (asthe case may not rest here,) that I have found no evidence of negligence in the libellant, contributing to his injury. Tf his situation on deck, at the time rendered him liable to injury from such an accident as occurred, it was the respondent’s duty to remove him, or distinctly warn him of his danger, before attempting to draw up the sail. It is clear, however, that no such danger was, or could be apprehended. The request made of passengers to move, was simply to save them from possible inconvenience, from the moving ropes and sails, and to get them out of the way. If the libellant heard and understood the request, (which is very doubtful,) he took the risk of such inconvenience in remaining, but nothing more. If greater risk was involved, (such, for instance, as of the block giving way,) I incline to believe the respondent should be held liable for failing to remove the libellant, or to see that he distinctly understood tie warning and the danger.

A decree will be entered dismissing the libel with costs.

I will add here what I had intended to say above,—that if there was failure, (as.the libellant asserts,) to keep the swivel oiled, this could not, in my judgment, have contributed to the shoulder drawing out; and the question whether there was, or was not, such fa dure, is, therefore, unimportant. The testimony of the witnesses, who have spoken on the subject, however, is that the block appeared to be in good order in all respects.

END OP OASES IN YOL. 7